Michael Paul Rusnik (By His Next Friend Vera Rusnik) v Commonwealth of Australia Sca [1989] ACTSC 62 (12 December 1989)

SUPREME COURT OF THE ACT

MICHAEL PAUL RUSNIK (by his next friend VERA RUSNIK) v. COMMONWEALTH
OF AUSTRALIA
S.C.A. No. 73 of 1988
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Injuries Compensation - appeal from determination of Registrar - applicant injured in fire started by father - factors court shall have regard to in determining amount to be awarded - damages recovered or likely to be recovered by applicant - amount applicant would have received if steps taken to enforce rights or pursue remedies - relationship of applicant to person whose conduct caused injury - Criminal Injuries Compensation Ordinance 1983, ss.14, 15(2)(b), (f) and (h).

Messel v. Davern (1981) 54 FLR 376

HEARING

CANBERRA
12:12:1989

Counsel for the appellant: Mr. J. Burns

Solicitors for the appellant: Gallens Crowley & Chamberlain

Counsel for the respondent: Mr. P. Coppel

Solicitors for the respondent: Australian Government Solicitors

ORDER

The appeal be upheld and the Registrar's decision be set aside.

DECISION

This is an appeal under s.28 of the Criminal Injuries Compensation Ordinance 1983 (the Ordinance) from a determination of the Registrar on 2 November 1988 dismissing an application for compensation. The appellant (whom it is easier to call the applicant) was born on 10 March 1974 and the application was brought and the appeal is brought by his mother as next friend.

2. As no criminal proceedings were instituted in respect of the offence, the Registrar had jurisdiction under s.11(3) to determine the application and by virtue of s.19 each reference in the Ordinance to the court applied as if it were a reference to the Court.

3. By sub-s.28(3) an appeal under the section shall be by way of a re-hearing. By sub-s.28(4) on an appeal under this section, the Supreme Court may:
"(a) affirm, set aside or vary the determination

of the Registrar; and
(b) make such other order as it considers just."

4. The facts found by the Registrar, and which are not in dispute, were set out in the Registrar's reasons for decision as follows:

"The applicant was burnt about the hands, feet and
face in a fire at his home in 1985. At the time
of the fire he was in the house with both his
parents and older brother. His brother and
father both died as a result of injuries they
received in the fire.
It is clear from the evidence that the fire was
deliberately started by the applicant's father,
who, had he lived, would have been found guilty
of a series of offences including, in respect of
the applicant, arson and maliciously inflicting
grievous bodily harm; and possibly attempted
murder.
Shortly before the fire, the applicant's father
had executed a will in which he left his whole
estate to his two sons in equal shares and, upon
the failure of these bequests, to certain named
nephews and neices. No bequest was made to his
wife. However, as a result of the death of the
oldest son, his wife became entitled to a half
share in the estate as a result of the oldest
son's intestacy. Thus the applicant and his
mother shared the estate between them equally.
The father's nett estate was valued, for probate
purposes, at approximately $102,000. The marital
home was not included in the estate because it
was held in joint tenancy with the applicant's
mother who, accordingly, became entitled to the
whole interest by survivorship.
The applicant's mother stated in evidence that
although she has inherited half of her husband's
estate, she has applied part of her share to the
repair and refurnishing of the family home. She
stated that it is her intention to ultimately leave
the home and all her assets to the applicant,
and to apply any remaining part of her share in
her husband's estate to his maintenance and advancement."

5. As this is an appeal by way of re-hearing, and not a hearing de novo, this Court must give judgment on the material before it as ought to have been given on that material by the Registrar: see Messel v. Davern (1981) 54 FLR 376. Apart from one matter, to which I will refer, the material before the Court is, apart from being in documentary form, the same as was before the Registrar.

6. At the conclusion of his careful reasons for decision the Registrar said, "I decline to award the applicant any compensation and order that his application be dismissed."

7. Central to the Registrar's decision and to the appeal are ss.14, and 15(2) of the Ordinance. Section 14 is in the following terms:

"14. The court may refuse to determine an
application if it is satisfied that the applicant has
not taken such steps to enforce rights or to
pursue remedies in respect of the relevant prescribed
injury or prescribed property damage as the court
considers it reasonable for him to have taken."

8. The relevant parts of s.15(2) are as follows:

"15(2) In determining the amount of compensation
to be awarded, the court shall have regard to:
.....
(b) any damages recovered by or for the benefit
of the applicant in respect of the relevant
prescribed injury or prescribed property damage or
that would, in the opinion of the court, be
likely to be so recovered if proceedings for the
recovery of those damages were instituted in a
court of competent jurisdiction;
.....
(f) any amount that, in the opinion of the
court, the applicant would have received if he
had taken such steps to enforce rights or to
pursue remedies in respect of the relevant
prescribed injury or prescribed property damage
as the court considers it reasonable for him to
have taken;
.....
(h) whether the applicant or the person who
sustained the relevant prescribed injury, as the
case may be, was, when that injury was sustained,
living with the person whose criminal conduct
resulted in that injury as the spouse of that
person or as a member of the household of that
person; and
(i) such other circumstances as the court
considers relevant."

9. On p 6 of his reasons, the Registrar expressed his view that the combined effect of s.14 and the relevant paragraphs of s.15(2) was to raise two questions:

"(a) Was it reasonable for the applicant to have
taken action against his father's estate in
respect of his injuries? and
(b) If it was reasonable, would he have been
able to recover sufficient damages to fully
compensate him, at law, for his injury?"

10. Applying these questions to the facts as he found them, the Registrar answered both in the affirmative and concluded on p 7 of his reasons that "s.14 and paragraphs 15(b) and (f) operate to preclude any award of compensation to the applicant". The Registrar decided that in the light of that view it was unnecessary to "consider whether or not paragraphs 15(2)(h) and (i) would apply to reduce or disallow an award".

11. Although the Registrar made reference to s.14 in its operation to preclude any award of compensation, the order that the application be dismissed and the express refusal to award the applicant any compensation suggests that the Registrar did not purport "refuse to determine the application" under s.14 and that despite what he said on p 7, the dismissal of the application was based on considerations under s.15(2)(b) and (f) and not under s.14. Section 14 does not on its proper application permit the Court to determine an application by dismissing the application. On the contrary, what s.14 does is to permit the Court to decline to make any determination of the application at all if it is satisfied that the applicant has failed to take the steps which the section specifies.

12. Insofar as the Registrar may have purported to dismiss the application pursuant to s.14, he was in error. Nevertheless, his decision is severable in that respect and it is sufficient to uphold his decision if the decision may be justified on the alternative basis to which he referred, namely a consideration of the factors under s.15(2)(b) and (f).

13. In my view, those two paragraphs are exclusive of each other. Paragraph (b) relates to damages recovered or likely to be recovered. Those damages are damages "in respect of the relevant prescribed injury or prescribed property damages". The damages may be "recovered by or for the benefit of the applicant". Such recovery, in my view, includes action by an applicant personally or action on an applicant's behalf, as for instance an action brought on his behalf by someone acting as his next friend.

14. Paragraph (f), on the other hand, is not restricted to damages recovered or likely to be recovered but is extended to any "amount" which might have been received if certain steps had been taken by the applicant. Those steps are steps to enforce rights or to pursue remedies "in respect of the prescribed injury". Those rights or remedies are not expressly confined to the right to sue for and recover damages. Whilst paragraph (b) is directed towards damages in fact recovered or which are likely to be recovered in the future, paragraph (f) is directed only to a hypothetical past situation. In my view, the "amount" referred to in paragraph (f) is an amount exclusive of any damages that the applicant has recovered or might recover in future in respect of the relevant prescribed injury or prescribed property damage.

15. The applicant in this case had no rights against his father's estate or any other rights which arose out of his injury apart from a right to claim damages for his injury from the estate of his father. Paragraph (b) does not refer to damages that would have been recovered if proceedings had been instituted (that is on some hypothesis as to what might have happened) but to such damages which either have in fact been recovered or "would, in the opinion of the court, be likely to be so recovered if proceedings for the recovery of those damages were instituted in a court of competent jurisdiction" (my emphasis). In other words, in contrast to paragraph (f) which is directed towards a past hypothetical situation, paragraph (b) is directed towards what has in fact happened (the recovery of damages) or what might still happen (the future recovery of damages).

16. The applicant has recovered no damages, and it is, in my view, more than unlikely that he will recover any damages from the estate of his father. The estate was distributed on 11 April 1989. The distribution post dates the Registrar's decision and although the situation may have been at that stage that it was possible for the applicant to sue the estate and recover damages, events have subsequently shown that the recovery of damages is out of the question. As this is a re-hearing, this Court has to act on the facts as they are now and it is too late for an action for damages against the estate.

17. Turning to paragraph (f), consideration is to be given to whether the applicant has taken steps to enforce rights or pursue remedies in respect of his injury as the court considers it reasonable for him to have taken. The Registrar concluded that the applicant had not taken such steps. It is clearly unreasonable to expect the applicant to have taken any steps between the distribution of the estate on 11 April 1989 and now. At the date of his injury on 15 July 1985 the applicant was eleven years old. To have taken any steps to enforce whatever rights he had against the estate of his father, it would have been necessary for him to obtain competent legal advice. If, as would appear likely, legal proceedings against the estate were necessary in order to enforce any rights he had, it would have been necessary to proceed through a next friend who was not his mother, as his mother would have held an adverse interest in the proceedings brought by him. Those steps and all the other steps necessary to conduct litigation against the estate of his father were open to the applicant and may well have been reasonable. However, in my view, what is necessary to be shown under s.14 is not simply that there is or was a reasonable step open to the applicant, but that the failure to take such a step is or was unreasonable. The respondent has not pointed to anything on the part of the appellant's conduct which is alleged to be or have been unreasonable, but simply relies on the fact, which I accept, that if there had been action against the father's estate, that would have been a reasonable step. However, I am not convinced that the failure of the applicant to sue his father's estate was unreasonable.

18. There is another feature which distinguishes paragraph (b) from paragraph (f). Paragraph (b) refers to damages recovered by and damages recovered for the benefit of the applicant. Damages recovered in an action by an infant suing by a next friend are not paid to the infant but ordered to be dealt with on the infant's behalf, usually by payment to the Public Trustee, and damages so recovered would fall within paragraph (b). Paragraph (f) on the other hand, refers to an amount which the applicant would have received. There is no reference to receipt for the applicant's benefit. By enforcing rights and pursuing remedies an infant does not immediately receive an amount. The receipt is or normally will be postponed until the infant attains majority. In my view, paragraph (f) has no application to an infant applicant. It is, in my view, inappropriate to refuse to award compensation (or reduce the compensation to nil) pursuant to s.15(2)(f).

19. Accordingly, sub-s.15(2)(b) and (f) do not, in my view, operate to preclude the award of compensation to the applicant in the circumstances of the case.

20. An alternative ground for refusal, on which the Registrar did not find it necessary to express a conclusion, is urged by the respondent to the appeal, the Commonwealth of Australia, and that is that the applicant is disentitled to compensation because of provisions of s.15(2)(h).

21. It has been said on a number of occasions that it is not easy to understand the purpose or effect of this paragraph or paragraphs similar to it in criminal injury compensation legislation elsewhere. It seems to me that one result which this paragraph is intended to prevent is the windfall that may be brought to a household consequent upon the criminal conduct of one of its members. For instance, if one spouse assaults the other, but they continue to cohabit, the receipt of compensation from public funds on the part of the victim may go to benefit the offender as much as the victim. This was hardly the intent of the scheme of compensation for criminal injury and provisions such as paragraph 15(2)(h) may prevent the occurrence of that sort of situation. However, there is no prospect of benefiting the wrongdoer by awarding compensation to the applicant in the present case, and I reject the submission made at the appeal on behalf of the respondent that there should be a refusal (or more precisely a reduction to nil) of compensation on that ground.

22. The respondent did not, as I understand it, ask that should I decide to set aside the Registrar's decision, I should then, pursuant to s.14, simply refuse to determine the application because the applicant has not taken steps to enforce his rights or remedies as the court considers it reasonable for the applicant to have taken. Whilst I consider that I have such a power under s.28(4) of the Act, I have some doubt whether it is appropriate to refuse to determine the application under s.14 when it is no longer open to the applicant to take steps which the court considers it reasonable for him to have taken. Without expressing a concluded view on this point, it seems to me likely that s.14 is directed towards a deferral of the determination of an application for criminal compensation where it is open to the applicant to pursue other steps to enforce the rights of the applicant. On the other hand, if an applicant is to be denied the compensation which is claimed, then the proper course is a determination expressed as a refusal to award compensation. A refusal to award compensation is not a refusal to determine an application under s.14. However, assuming that the Court may refuse to determine an application when other steps were but no longer are available, is it appropriate to refuse to determine the application in the present case? Like s.15(2)(f) section 14 is directed to a situation where the applicant has not taken such steps as the court considers it reasonable for him to have taken. I have already indicated why s.15(2)(f) should not in the circumstances defeat the applicant's claim for compensation. For similar reasons I do not think that s.14 should be used to defeat this applicant's claim.

23. Accordingly, the appeal will be upheld and the Registrar's decision set aside. I will hear the parties on whether it is appropriate for me to proceed to determine the amount of compensation to be awarded to the applicant, or whether the appropriate course is to remit the matter to the Registrar. Unless the parties wish to be heard, I propose to order the respondent to pay the applicant appellant's costs of the appeal.